Friday, March 11, 2011

Planting pornography on someone's computer.

An attorney in the Maine Attorney General's office was recently sentenced to sixteen years in prison for possession of child pornography. Although we frequently mention the crimes, foibles, and faux pas of prosecuting attorneys, this post is not about that attorney. The judge in the case summed up my views on the matter:

You were working in a position of authority and respect, and here you are not on the right side of the book but in the defendant's seat. ... A criminal,. . . You lost your job, your wife, your assets, your reputation, and your freedom. For what? To view images of children being sexually assaulted and abused. Images that are sickening and sad.

But the comment by Peter C. Lometevas caught my attention. According to his website, Mr. Lometevas is an attorney in New York specializing in criminal defense and family law matters. Mr. Lomtevas comments that he has represented men in what he calls “guilt by computer cases.” According to Mr. Lomtevas,

The common thread in them is a wife who wants to isolate children from the man. Family members obtain the computer and find child pornography on them. These searches are valuable because there is a federal law prohibiting possession of child porn so it pays to find – perhaps even plant – this stuff on a man’s computer.

Mr. Lometevas goes on to say, "Divorcing couples know this and now child porn appears on a prosecutor’s computer. An over zealous judge who knows nothing about how the internet operates craps all over the man.”

A disgruntled wife planting child porn on a prosecuting attorney’s computer as part of divorce strategy would be a horrific act. However the issue I have with Mr. Lometevas's comment is that it no one involved in the case seems to think that is the defendant's wife planted the evidence.

First, as this story makes clear, the child pornography was not discovered as a result of a search by anyone in the attorney’s family. Instead, Yahoo! reported finding child pornography in photos of an account holder later identified as the attorney’s wife. The article further explains, “The Yahoo! reports were made to the National Center for Missing and Exploited Children in Alexandria, Va., an organization that works with local, state and federal investigators.” So, no family members made the report and the account holder was not the defendant (as one might expect if it were planted) but the defendant’s wife.

Still, given that it was in the wife’s account, we can assume the defense was that the wife planted the photos, right? Wrong. As the Kennebec Journal reports, the defense argued that “someone from outside his family's home in Hallowell might have been responsible for the explicit images found on their four computers, or that the images had been downloaded by his 12-year-old autistic son.” So while the defense was willing to blame strangers or a handicapped boy, it was not willing to blame the wife. Moreover, as this article notes, the attorney's (now ex)wife agreed to be responsible for him while he was on bail. Hardly the actions of someone wishing to isolate the defendant from his children.

While Mr. Lometevas is wrong that the this case right involves a disgruntled wife planting child porn on a hapless husband’s computer, it apparently does happen. A Westlaw search of all federal and state cases revealed three cases where the topic came up. In United States v. Starr, 533 F.3d 985, 999 (8th Cir. 2008), the defendant claimed his wife planted child porn on his computer. However, the victim testified that she sent the photos to the defendant. Based on this testimony, the Eighth Circuit rejected the defendant’s appeal that there was no evidence that he possessed the images prior to his wife providing them to the police. In State v. Sanders, 126 S.W.3d 5, 28 (Mo. Ct. App. 2003), the defendant claimed that his ex-wife planted the child pornography. He was allowed to present the defense but was convicted. Finally, there is one case where a court found that the wife did plant child porn on her husband’s computer. That happened in Tauck v. Tauck, FA054004889S, 2007 WL 3087962 (Conn. Super. Ct. Sept. 21, 2007), a Connecticutt divorce case. Lasting 86 days and generating more than $13 million in attorneys fees, the New York Post reports that the Tauk divorce trial was the largest and most expensive in Connecticut history.

It was good that Mr. Lometevas drew attention to this issue. I had never heard of it before. I just wish he would have done so without suggesting that the the wife of this particular defendant had done such a monstrous thing.

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